Virginia Special Duties of Protection: Assumed – a Lawyer’s Overview

Virginia Special Duties of Protection: Assumed – a Lawyer’s Overview

This is the last of three posts covering duties of care for protection under Virginia law against criminal conduct of third-parties causing wrongful death, brain injury, and other personal injuries. Virginia recognizes (gratuitously) assumed duties of care.

The Virginia Supreme Court recently reaffirmed that one can assume a duty of care when otherwise none would exist. “As the plaintiffs correctly point out, and the defendants do not dispute, we have cited with approval the legal principal that ‘[i]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all’.” Didato v. Strehler, 262 Va. 617, 628 (2001)(emphasis added)(and cases cited therein). Significantly, Didato held that even if plaintiffs were unable to establish the prevailing medical standard of care (duty) required the defendant doctors to act, i.e., to notify; the defendants having undertaken in fact to notify properly constituted that they “assumed the duty”. Id. at 629.